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VOLUME: XI
VALUE ADDED TAX
CHAPTER: 50:03
Part:IX Collection and Recovery (ss 33-41)

 

33.     Due date for payment

 

            (1) Tax payable under this Act is due-

     (a)     from a registered person for a tax period, by the due date for the return for the tax period;

     (b)     from a person assessed under an assessment issued under this Act, on the date specified in the notice of assessment; or

     (c)     from an importer of goods or a recipient of an import of services, by the due date specified under section 15 in respect of the import.

            (2) Where an objection to, or a notice of appeal against, an assessment has been lodged, the tax payable under the assessment is due and payable under subsection (1), and may be recovered, notwithstanding that objection or appeal.

            (3) Upon application in writing by a person liable for tax, the Commissioner General may, where good cause is shown, extend the time for payment of tax by the person beyond the date on which it is due and payable under this section, or make such other arrangement as appropriate to ensure the payment of the tax due, and any such extension does not alter the due date for purposes of section 22.

            (4) A person dissatisfied with a decision of the Commissioner General under subsection (3) may appeal against the decision only in accordance with the provisions of Part VIII.

            (5) A person who fails to pay tax payable under this Act on or before the due date, is liable for a penalty which is the greater of-

     (a)     P50 per day for each day or part thereof that the tax remains outstanding; or

     (b)     an amount equal to 10 percent of the tax outstanding, for each month or part thereof that the tax remains outstanding.

            (6) The penalty imposed under subsection (5) shall not exceed the amount of unpaid tax.

            (7) A penalty paid by a person under subsection (5) shall be refunded to the person to the extent that the tax to which it relates is subsequently determined not to have been due and payable.

            (8) A penalty imposed under subsection (5) is in addition to any interest payable under section 22.

 

34.     Recovery of tax chargeable

 

            (1) Any amount of tax due and payable under this Act shall be recoverable by the Commissioner General as a debt due to the State from the person liable therefor, in the manner provided in this section.

            (2) Where a person, referred to as "the defaulter", fails to pay tax when it is due and payable, the Commissioner General may file, with the clerk or registrar of a court, a statement certified by the Commissioner General setting forth the amount of the tax due and payable by that person, and that statement shall have the effect of a civil judgment lawfully given in that court in favour of the Commissioner General for a liquid debt in the amount specified in the statement, and the court shall issue a writ of execution in respect thereof against the defaulter.

            (3) A writ of execution under subsection (2) shall not be issued until 14 days after service by the court on the defaulter of a notice informing the defaulter that a writ of execution will be issued by the court in respect of tax owed and unpaid by the defaulter unless, before the expiration of that period of 14 days, the defaulter produces proof of payment thereof satisfactory to the court.

            (4) The Commissioner General may, without prejudice to re-instituting proceedings under subsection (2), by notice in writing addressed to the clerk or registrar of the court, withdraw the statement referred to in subsection (2) and such statement shall thereupon cease to have effect.

            (5) Where, in addition to an amount of tax which is due and payable by any person under this Act, an amount of interest or penalty is payable, any payment made by the person in respect of such tax, interest, or penalty which is less than the total amount due, shall be deemed to be made-

     (a)     first in respect of such penalty;

     (b)     to the extent that such payment exceeds the amount of such penalty, then in respect of such interest; and

     (c)     to the extent that such payment exceeds the sum of such penalty and interest, then in respect of such tax.

            (6) Where the Commissioner General has reasonable grounds to believe that a person may leave Botswana permanently without paying all tax due or which may become due under this Act, the Commissioner General may issue a certificate to the Chief Immigration Officer containing particulars of the tax due and request that the Chief Immigration Officer take the necessary steps to prevent the person from leaving Botswana until the person makes-

     (a)     payment in full; or

     (b)     an arrangement satisfactory to the Commissioner General for the payment of the tax.

            (7) The Commissioner General shall, if it is practicable to do so, serve a copy of the certificate issued under subsection (6), on the person named in the certificate.

            (8) Payment of the tax specified in a certificate issued under subsection (6), to a Customs and Excise officer or Chief Immigration Officer, or the production of a certificate signed by the Commissioner General stating that the tax has been paid or a satisfactory arrangement for payment has been made, shall be sufficient evidence for any immigration officer to allow the person to leave Botswana.

 

35.     Security

 

            (1) The Commissioner General, in any case where it is reasonable to do so for the protection of the revenue, may, by notice in writing, require any person to furnish security for the payment of tax that is or may become payable by the person under this Act.

            (2) Security required under subsection (1) shall be for such amount, in such form, and furnished within such period as the Commissioner General may specify in the notice.

            (3) Where a registered person fails to comply with a notice under subsection (1), the Commissioner General may recover the amount of the security as if the amount is tax due under this Act.

            (4) Where security under subsection (1) is in cash and the Commissioner General is satisfied that the security is no longer required, the amount of the security shall be applied by the Commissioner General as specified under section 42(2).

            (5) A person dissatisfied with a decision of the Commissioner General under subsection (1) may appeal against the decision only in accordance with the provisions of Part VIII.

 

36.     Preferential claim to assets

 

            (1) For the purposes of this Act the words "tax on income or profit", contained in paragraph (a) of section 86 of the Insolvency Act, shall include value added tax.

            (2) Where a person is in default of paying tax, the Commissioner General may, by notice in writing, inform that person of the Commissioner General's intention to apply to the Registrar of Deeds for any land or building situated in Botswana which is owned by that person, to be the subject of security for the unpaid tax in default, together with any expense incurred in recovery proceedings.

            (3) If the person on whom a notice has been served under subsection (2) fails to pay the amount specified in the notice within 30 days after the date of service of the notice, the Commissioner General may, by notice in writing, direct the Registrar of Deeds that the land or buildings, to the extent of the defaulter's interest therein, shall be the subject of security for the total amount of unpaid tax.

            (4) Where the Commissioner General has served a notice on the Registrar of Deeds under subsection (3), the Registrar shall, without fee, register the notice of security as if the notice were an instrument of mortgage over or charge on, as the case may be, such land or buildings, and such registration shall, subject to any prior mortgage or charge, operate while it subsists in all respects as a legal mortgage over or charge on the land or buildings to secure the amount due.

 

37.     Seizure of goods

 

            (1) Where the Commissioner General has reasonable grounds to believe that tax on a supply or import of goods has not been or will not be paid, the Commissioner General may seize the goods.

            (2) The Commissioner General may seize any vehicle used in the removal or carriage of goods liable to be seized under subsection (1) unless it is shown that such vehicle was so used without the consent or knowledge of the owner of that vehicle or other person lawfully in possession or charge thereof; and at the discretion of the Commissioner General, the vehicle may be sold by public auction or may be dealt with in such other manner as the Commissioner General may direct.

            (3) Goods seized under subsection (1) shall be stored in a place approved by the Commissioner General for the storage of such goods.

            (4) Where goods are seized under subsection (1), the Commissioner General shall, as soon as practicable after the seizure, serve on the owner of the goods or the person who had custody or control of the goods immediately before seizure, a notice in writing-

     (a)     identifying the goods;

     (b)     stating that the goods have been seized under this section and the reason for seizure; and

     (c)     setting out the terms of subsections (7), (8), and (9).

            (5) The Commissioner General is not required to serve notice under subsection (4) if, after making reasonable enquiries, the Commissioner General does not have sufficient information to identify the person on whom the notice should be served.

            (6) Where subsection (5) applies, the Commissioner General may serve a notice under subsection (4) on any person claiming the goods, provided the person has given the Commissioner General sufficient information to enable such a notice to be served.

            (7) Subject to subsection (8), the Commissioner General may authorise the delivery of goods seized under subsection (1) to the person on whom a notice was served under subsection (4), where that person pays or gives security, in accordance with section 35, for the payment of tax due and payable or that will become due and payable in respect of the supply or import of the goods.

            (8) The Commissioner General shall detain the goods seized under subsection (1)-

     (a)     in the case of perishable goods, for such period as the Commissioner General considers reasonable having regard to the condition of the goods; or

     (b)     in any other case, until the later of-

           (i)       10 days after the seizure of the goods; or

          (ii)       10 days after the due date for payment of the tax on the supply or import of the goods.

            (9) Where the detention period in subsection (8) has expired, the Commissioner General may sell the goods in the manner specified under section 38(4) and apply the proceeds of sale as set out in section 38(5).

            (10) Notwithstanding the provisions of this section, the Commissioner General may proceed under section 34 with respect to any balance owed if the proceeds of sale are not sufficient to meet the costs thereof and the tax due.

 

38.     Distress proceedings

 

            (1) The Commissioner General may recover unpaid tax by distress proceedings against the movable property of the person liable to pay the tax, referred to as the "person liable", by issuing an order in writing, specifying the-

     (a)     person liable;

     (b)     location of the property; and

     (c)     tax liability to which the proceedings relate.

            (2) For the purposes of executing distress under subsection (1), the Commissioner General may-

     (a)     at any time, enter any house or premises described in the order authorising the distress proceedings; and

     (b)     request a police officer to be present while the distress is being executed.

            (3) Property upon which a distress is levied under this section, other than perishable goods, shall be kept for 10 days either at the premises where the distress was levied or at such other place as the Commissioner General may consider appropriate, at the cost of the person liable.

            (4) Where the person liable does not pay the tax due, together with the costs of the distress-

     (a)     in the case of perishable goods, within such period as the Commissioner General considers reasonable having regard to the condition of the goods; or

     (b)     in any other case, within 10 days after the distress is levied,

          the property distrained upon may be sold by public auction, or in such other manner as the Commissioner General may direct.

            (5) The proceeds of a disposal under subsection (4) shall be applied by the auctioneer or seller first towards the cost of taking, keeping, and selling the property distrained upon, then by the Commissioner General towards the tax due, and the remainder of the proceeds, if any, shall be restored to the person liable.

            (6) Nothing in this section precludes the Commissioner General from proceeding under section 34 with respect to any balance owed if the proceeds of the distress are not sufficient to meet the costs thereof and the tax due.

            (7) All costs incurred by the Commissioner General in respect of any distress proceedings, may be recovered by the Commissioner General from the person liable as if the costs are tax due under this Act.

 

39.     Recovery of tax from recipient of supply

 

            (1) Where, in consequence of a fraudulent action or misrepresentation by the recipient of a taxable supply from a registered person, the registered person incorrectly treated the supply as an exempt or zero-rated supply, the Commissioner General may raise an assessment upon the recipient for the amount of unpaid tax in respect of the supply, together with any interest or penalty that has become payable under sections 22, and either 15 or 33.

            (2) The Commissioner General shall serve notice of an assessment under subsection (1) on the recipient specifying-

     (a)     the tax payable;

     (b)     the date the tax is due and payable; and

     (c)     the time, place, and manner of objecting to the assessment.

            (3) An assessment raised under subsection (1) is treated as an assessment for all purposes of the Act.

            (4) Subsection (1) does not preclude the Commissioner General from recovering the tax, interest, or penalty from the registered person making the supply.

            (5) For purposes of subsection (4), any amount recovered from the recipient is to be credited against the liability of the registered person; and any amount recovered from the registered person is to be credited against the liability of the recipient.

            (6) Where an amount of tax, interest, or penalty referred to in subsection (1) is paid by the registered person, the registered person may recover the amount paid from the recipient.

            (7) An amount assessed under this section shall be treated, for all purposes of this Act, as tax charged under this Act.

 

40.     Recovery of tax from third parties

 

            (1) Where a person liable to pay tax under this Act, referred to as the "person liable", fails to do so by the due date, the Commissioner General may, by notice in writing, require any other person-

     (a)     owing or who may owe money to the person liable;

     (b)     holding or who may subsequently hold money for, or on account of, the person liable; or

     (c)     having authority from some other person to pay money to the person liable, to pay the money to the Commissioner General on the date set out in the notice, up to the amount of the tax due.

            (2) The date specified in the notice under subsection (1) shall not be a date before the money becomes due to the person liable to pay tax, or held on the person's behalf.

            (3) A copy of a notice issued under subsection (1) shall be served on the person liable.

            (4) Where a person served with a notice under subsection (1) is unable to comply with the notice, the person shall, before the payment date specified in the notice, notify the Commissioner General, in writing, setting out the reasons for the inability to comply.

            (5) Where a notice is served on the Commissioner General under subsection (4), the Commissioner General may, by notice in writing-

     (a)     accept the notification and cancel or amend the notice issued under subsection (1); or

     (b)     reject the notification.

            (6) Where a person who has served a notice on the Commissioner General under subsection (4) is dissatisfied with the decision of the Commissioner General under subsection (5), the person may appeal against the decision only in accordance with the provisions of Part VIII.

            (7) A person making a payment pursuant to a notice under subsection (1) shall be deemed to have acted under the authority of the person liable and of any other person concerned and is indemnified in respect of the payment.

            (8) The provisions of this Act relating to the collection and recovery of tax shall apply to any amount due under this section as if it were tax due under this Act.

            (9) A person who fails to comply with a notice under this section commits an offence and is liable on conviction to a fine not exceeding P5,000 or to imprisonment for a term not exceeding one year, or to both.

            (10) Where a person is convicted of an offence under subsection (9), the Court may, in addition to imposing a fine or prison sentence, order the convicted person to pay to the Commissioner General an amount not exceeding the amount which the person failed to pay as required under this section.

 

41.     Duties of receivers

 

            (1) In this section, "receiver" means a person who, with respect to an asset in Botswana of a registered person, is-

     (a)     a liquidator of a company;

     (b)     a receiver appointed out of court or by a court;

     (c)     a trustee for an unrehabilitated insolvent;

     (d)     a mortgagee in possession;

     (e)     an executor of a deceased estate; or

     (f)      any other person conducting a business on behalf of a person legally incapacitated.

            (2) A receiver shall, in writing, notify the Commissioner General within 14 days after being appointed to the position or taking possession of an asset in Botswana, whichever first occurs.

            (3) The Commissioner General may, in writing, notify a receiver, of the amount which appears to the Commissioner General to be sufficient to provide for tax which is or will become payable by the person whose assets are in the possession of the receiver.

            (4) A receiver-

     (a)     shall set aside, out of the proceeds of sale of an asset, the amount specified by the Commissioner General under subsection (3), or such lesser amount as is subsequently agreed on by the Commissioner General;

     (b)     is liable to the extent of the amount set aside for the tax of the person who owned the asset; and

     (c)     may pay any debt that has priority over the tax referred to in this section notwithstanding any provision of this section.

            (5) A receiver is personally liable to the extent of any amount required to be set aside under subsection (4) for the tax referred to in subsection (3) if, and to the extent that, the receiver fails to comply with the requirements of this section.

            (6) A person who fails to comply with the requirements of subsection (4) commits an offence and is liable on conviction to a fine not exceeding P5,000 or to imprisonment for a term not exceeding one year, or to both.

            (7) Where a person is convicted of an offence under subsection (6) for failing to set aside an amount as required under subsection (4), the court may, in addition to imposing a fine or prison sentence, order the convicted person to pay to the Commissioner General, an amount not exceeding the amount which the person failed to set aside as required under subsection (4).